U.S. District Judge Noel Hillman/courtesy photo

A federal judge hearing a hostile work environment suit by a transgender woman wants to stay the litigation until the U.S. Supreme Court rules on whether transgender people are a protected class under Title VII.

U.S. District Judge Noel Hillman issued an order to show cause Monday as to why a ruling in the underlying Title VII lawsuit should not be stayed until the Supreme Court rules in this term's landmark transgender-rights case. Hillman issued the order in a suit by Charlize Cunningham, who claims she endured a hostile work environment related to her transgender status while working for Burlington Coat Factory Warehouse Corp.

Hillman's order proposes a stay of Cunningham's Title VII claim pending a Supreme Court ruling in R.G. and G.R. Harris Funeral Home v. EEOC, the case of a biologically male Michigan funeral director who was fired after informing colleagues she intended to transition to female and change her name from Anthony Stephens to Aimee Stephens. The justices are slated to hear arguments Oct. 8.

A federal judge in Detroit ruled in favor of the funeral home but the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the funeral home discriminated against Stephens on the basis of gender, in violation of Title VII.

The U.S. Court of Appeals for the Third Circuit has yet to rule on whether transgender people are a protected class under Title VII, Hillman said. He gave both sides 14 days to submit briefs of up to five pages on whether a ruling in the case should be stayed pending the Supreme Court case.

Burlington Coat Factory's lawyer, in a motion to dismiss, asked the court to follow the lead of the Seventh, Eighth and Tenth circuits, which have held that transgender people are not a protected class under Title VII. Meanwhile, Cunningham's lawyer asked the court to follow the recent position of the Equal Employment Opportunity Commission, which is that discrimination based on transgender status is a violation of Title VII. Cunningham's lawyer also points to the holdings of the Sixth and Eleventh circuits, which have ruled that transgender people belong to a protected class under Title VII.

David Koller of Koller Law in Philadelphia, who represents Cunningham, said in an email, "We are really pleased that the court has allowed Charlize's claims to survive the initial attempt at dismissal by the defendant. I am really happy for Charlize. On a professional level, and as a human being, I feel strongly that transgendered individuals should be afforded these rights under the law."

Koller said he and his client had not had a chance to discuss whether they would rather proceed with the case now or wait for a Supreme Court ruling. But either way, Koller said, "we will definitely continue to be guided by a strong desire and motivation at justice for Charlize and all transgendered individuals."

Michael O'Mara of Stradley Ronon Stevens & Young in Philadelphia, who represents Burlington Coat Factory, did not respond to requests for comment about the ruling.

Cunningham was hired as a sales associate at a Burlington store in 2011. She soon became subject to disparaging comments and jokes about her transgender status. Cunningham was in a car accident that left her with a lymph nodes infection in 2013. Due to an undisclosed, underlying disability, the infection did not heal and Cunningham missed time from work.

When she advised the human resources department of her underlying disability and her need to attend ongoing medical appointments, she was told the company would reevaluate her employment if she had any more medical problems, the suit claims. Cunningham applied for accommodation under the Family and Medical Leave Act, which was initially approved but later revoked. She was then terminated in March 2014 for absenteeism and tardiness. Cunningham filed a complaint with the EEOC and received a right-to-sue letter in March 2018.

Hillman granted Burlington's motion to dismiss Cunningham's retaliation and failure-to-promote claims because she failed to raise those claims in administrative charges she filed with the EEOC. Hillman also granted Cunningham permission to file an amended complaint that provides more information about her disability. But he declined to grant Burlington's motion to dismiss the suit for failure to state a claim on which relief can be granted.